Alan Whitehead: If I do have a bag on me this morning, it is very well secreted. You would expect nothing less, Mr Gray.
These amendments are essentially combined amendments, inasmuch as their effect—although it is achieved in slightly different ways—is to ensure that the regulations are made effective by the affirmative procedure on all occasions, so that they can be discussed. At the moment, through various measures in the Bill, regulations will be agreed by the affirmative procedure in the first instance only. Should further regulations be introduced, they will not be agreed by the affirmative procedure.
Hon. Members may think that is not a particularly important distinction. The “Memorandum concerning the Delegated Powers in the Nuclear Safeguards Bill for the Delegated Powers and Regulatory Reform Committee” —the departmental memo—says:
“The first set of regulations made under this power will be subject to the draft affirmative procedure in order to allow both Houses of Parliament to debate the technical details of the new regime in full.”
In other words, new regulations will be introduced to bring into being a new regime, as we recall from our previous discussions in this Committee, to replace that which was previously undertaken through Euratom’s oversight.
“Subsequent regulations will be subject to the negative resolution procedure unless they create new criminal offences or they include any provision amending or repealing the Nuclear Installations Act 1965 or Nuclear Safeguards Act 2000, in which case the draft affirmative procedure will apply (pursuant to section 113(3) of the 2013 Act).”
That is so. There is an exception to using the negative procedure for subsequent regulations in those instances, but the impression that one gets from the memorandum is that the difference, other than on the matter of repealing the Nuclear Installations Act 1965 or the Nuclear Safeguards Act 2000, is very slight.
I suggest to the Committee that the significance of subsequent regulations can be considerable, inasmuch as they are new regulations that will replace Euratom’s regulations, and will not necessarily be fully formed in the first instance. As far as I can see, it is not the case that they are likely to be minor tidy-ups that are of no consequence and therefore can safely be provided for under negative resolution.
Indeed, the memorandum goes on to say that not only is the negative resolution procedure considered appropriate for future amendments as far as the new set of regulations is concerned, but in the case of power to make regulations or authorise the Office for Nuclear Regulation to make the payments towards compliance costs:
“The Department believes that the negative resolution procedure is considered appropriate, as the regulations will only authorise expenditure, but the negative procedure will still ensure Parliament has oversight.”
We need to consider two things: first, whether the subsequent amendments that are likely to arise to the new regulations are of such insignificance that it is safe to place into legislation that they will be discussed in the House through the negative procedure. Secondly, we need to consider whether the use of negative procedure for the future regulation ensures that Parliament has oversight of the procedures.
It might be worth considering what one has to do to get oversight of a negative resolution for a piece of secondary legislation in this House. Hon. Members know that the procedure through which a negative resolution is laid is that the Government lay the resolution, and that everyone has 21 days—I believe that is the case—to draw attention or object to that negative resolution, or require that it be debated further. If there is no such objection, the negative resolution is automatically assumed to have been put in place with no oversight at all.
If there is, however, an objection, it remains extremely difficult to get that resolution, further amendment or new secondary legislation in a position where it can be  meaningfully scrutinised. One way of doing that is for those people who want to raise the issue to make a prayer to annul the secondary legislation—the negative resolution. That would be done by laying down that prayer as an early-day motion and by trying to gather a number of signatures on it, as in the case of any other early-day motion; except, of course, it is not an early-day motion but a procedure to try to hoist that negative resolution on to the Floor of the House in some way.
It is remarkable that if a prayer is laid down, there is no guarantee that anything will happen as far as that prayer is concerned. The House needs to review that in the not too distant future. It is down to the Government to decide whether a day should be given to debate that negative resolution, as if it were an affirmative resolution, in Committee. In those circumstances, the most that would happen is that the Government may or may not agree that time should be made available. At that point, a non-amendable motion would be debated for 90 minutes in Committee. However, it is by no means the case that time would be given, and even if time was given that would certainly not make any difference to the laying of the negative resolution. It is quite possible for time to be given for a debate after the negative resolution comes into force. Then, even if that negative resolution is passed, it is effectively only an advisory resolution as far as this particular piece of legislation is concerned; it does not overturn it in its own right and it would require further procedures on the Floor of the House, at the end of a debate, to try to get the negative resolution overturned.
What I think is clear from that little exposition of how negative resolutions can be addressed by this House is that the idea that a negative procedure will ensure that Parliament still has oversight is rather wide of the mark, regarding the reality of what one would be faced with if a negative resolution was to be laid.
As for the content of a negative resolution, as I have said, it is by no means clear that, in this instance and as far as this Bill is concerned, after the first set of regulations has been made, for which an affirmative resolution must be laid, any subsequent secondary legislation will only make small technical amendments to the regulations. Indeed, it is not possible to guarantee, in order to sustain the case that the negative procedure should be applicable after the first time, that there will only be small technical amendments to those regulations.
The reason is that, as I have said and as has been mentioned both in this Committee and in evidence given to this Committee, the Bill is not only a contingent Bill but is a Bill, when it becomes operational, whose safeguarding regime would not be everything that we want it to be. It might be fit for purpose basically, but as both the Minister and witnesses have indicated, the regulations and their operation on day one after exit day would be by no means the finished article.
Although it would be possible to accord to, for example, the voluntary agreement arrangements with the International Atomic Energy Agency—one would hope that is possible—one could reasonably envisage further significant regulations being introduced to bolster the regime that had been passed for duty, as it were, on day one after exit day.
Therefore, in this particular instance it is really not possible to state with certainty that, after the first regulations have been laid, nothing significant will come  down the road under the general heading of “regulations”. It appears to me that on both those grounds it is difficult to make a case saying, “Don’t worry. Everything’s okay. Nothing to look at. Move along,” which appears to be what is happening.
First, I would particularly like to hear from the Minister whether he thinks, and can really say, that the secondary regime after regulations have been made will be one of a merely technical nature in perpetuity. Secondly, does he think that the negative procedure will give the House a sufficient level of scrutiny and leverage about the nature of subsequent regulations, as the memorandum appears to suggest? I will be interested to hear how that argument proceeds, but at the moment I am not convinced that it has great substance. I therefore hope that the Committee will consider these amendments to put that right, so that the affirmative procedure is not just required for the initial regulations but is guaranteed for future regulations that are introduced under the heading of the general subject matter of the first regulations.

Richard Harrington: Good morning, everybody. I thank the hon. Member for Southampton, Test for his contribution relating to amendments 9, 10 and 11. I have spent quite a lot of time thinking about them and about how practical his suggestion is.
I apologise to the hon. Gentleman and the Committee as I do not have the draft regulations for the Committee. We discussed them the week before last, but I was eager to secure this slot so that the Bill could progress. Discussions with the Office for Nuclear Regulation are well advanced, and I hope that, before we discuss the Bill further—definitely by January—they will be published for all hon. Members and a wider audience to see. They are not secret regulations  or anything particularly devious. It is simply because of the logistics of organising them along with the Bill that we have not published them in time.
I should set out this provision in the same way as the hon. Gentleman did. Clause 1(2) creates new powers to enable the Secretary of State to make regulations for the purpose of ensuring that qualifying nuclear material, facilities or equipment are available only for the use for civil activities. 7. To do that, clause 1(2) inserts new section 76A into the Energy Act 2013. Section 76A provides the Secretary of State with new regulation-making powers relating to nuclear safeguards. The regulations will set out the detail of the domestic regime for civil nuclear safeguards.
It is appropriate to make provision for a nuclear safeguards regime in delegated legislation, simply because the subject matter is highly technical and the substantive provisions necessary to give effect to the regime will be very detailed. That is why we believe that it has to be in secondary legislation.
New section 76A(2) sets out examples of the safeguards obligations that can be imposed through the nuclear safeguards regulations. These could be in relation to record keeping, accounting, the provisional publication of information, imports and exports, the design of qualifying nuclear facilities or equipment, and the production, processing, use, handling, storage or disposal of qualifying nuclear material or equipment.
The regulations will cover the detailed aspects of the safeguards regime. At the heart of that are the technical provisions governing how nuclear materials are accounted for and how they are reported. For example, the existing nuclear safeguards regime defines “material balance areas”, which is a core concept in international safeguards methodology for accounting for nuclear materials. Another example is safeguards equipment that can be installed on licensed sites such as surveillance cameras, seals and remote monitoring equipment, used to support safeguards activities by detecting declared and undeclared nuclear material and activities. That is fairly non-controversial stuff, but the regulations need to go into detail and those are just two examples.
The proposed use of delegated powers goes with the grain of the rest of the Energy Act 2013 and how it deals with highly technical, complex and detailed areas such as nuclear security, which is also regulated by the ONR. That fits with the rest of the Bill and the rest of the supervision of powers within ONR regulations.
We all accept that the consequences of failing to put in place such a safeguards regime would be profound. We have all repeated that quite a few times, so I will just say that there is consensus. I have to make sure that the powers in the Bill allow the UK to comply with any international safeguards commitments or undertakings that we make with the International Atomic Energy Agency or with other states. Empowering the Government and the Office for Nuclear Regulation quickly and effectively to adapt to the changing nuclear regulatory landscape is essential as nuclear technologies and proliferation techniques develop; if we are to continue to be able to support the international community; and as believers in non-proliferation and safeguards activities.
I will briefly, but importantly I hope, come on to the point on parliamentary scrutiny procedure. The amendments proposed by the hon. Gentleman would change parliamentary procedure for regulations made under clause 1. As the Bill is drafted, the first set of regulations made under this power will be subject to the affirmative procedure, as he said, to allow both Houses of Parliament to debate in full the technical details of the new regime. I politely disagree with the hon. Gentleman, because I feel that that means full debate in the affirmative procedure.
We think, for very good reason, that subsequent regulations will be subject to a negative resolution procedure. He eloquently went through the system for praying, which I did not understand in my first few years in this House, although I am sure that you, Mr Gray, and other colleagues did. I now understand it fully, but at first when people told me that they were praying on a particular subject I thought that may have been to do with hunting or indeed some form of religious observance. I now understand that it is one of the great traditions of this House. For us, the important thing is the initial affirmative procedure.
I would like to state clearly that the draft affirmative procedure will continue to apply where subsequent regulations create new criminal offences or, very importantly, where they include any provision amending or repealing the Nuclear Installations Act 1965 or the Nuclear Safeguards Act 2000. We believe that it is appropriate to have an initial draft affirmative procedure for the first set of regulations because of the breadth of the measures initially needed to establish the regime and the potential significance of the regulations that will set out in detail the key elements of the regime. That is our point of difference, because I would argue that once the nuclear safeguard regime has been established by the first regulations, the subsequent changes are likely to be technical and smaller, reflecting developments in safeguards technologies and processes. There are many precedents for this approach in relation to nuclear regulations, and precedents that permit subordinate legislation to be made subject to the negative resolution procedure. In particular, the proposed approach to scrutiny is consistent with the scrutiny of nuclear regulations under section 74 of the Energy Act 2013, as set out in section 113(2)(a) and (3). That power can be used to make provision on four important areas of nuclear regulation: nuclear safety; nuclear security; the transport of nuclear materials; and, until replaced by the power in the Bill under discussion today, nuclear safeguards. After my explanation, I hope that the hon. Members feel able to withdraw their amendments.

Richard Harrington: The hon. Gentleman is perfectly at liberty, as he knows, to press this to a vote. I have tried, as he has, to try to find common ground, but obviously he feels that I have not done so in this case. It is true that our positions are much the same as they were before we stood up to speak today. Although he has the ability to press this to a vote, I wonder if he would be interested instead in talking about this in other discussions before Report to see if there is common ground. I feel that the majority of the regulations are technical, and the affirmative procedure is perfectly acceptable, but if there were a way of separating the two issues so that he and I could discuss it with colleagues, I would be very happy to.

Alan Whitehead: On that basis, and clearly we need a lexicographer here this morning as we discuss these circumstances, I am happy not to press the amendment to a vote and I hope that we can discuss these issues during the passage of the Bill, to see whether we can make any progress.
I beg to ask leave to withdraw the amendment.

Richard Harrington: I shall do my best to implement the wise advice you gave us, Mr Gray.
In summary, I believe that the intentions behind amendment 14 are entirely good, but I would argue that it is defective because it would turn on the improvement notice power for nuclear security. That does not need to be turned on because there are existing, stronger direction-making powers. I shall briefly try to make that argument—hopefully with some success—to the Committee. Of course, I share the hon. Gentleman’s concern to ensure that the ONR inspectors have the right powers to fulfil their responsibilities. That is the whole purpose of the Bill.
This issue was raised by the Prospect union. As a result of its evidence, I asked it for a meeting, which I have arranged for the next couple of weeks, to discuss all the issues it raised, together with the other union that gave evidence at the same time.
Paragraph 11(2) of the schedule to the Bill amends paragraph 3(5) of schedule 8 to the Energy Act 2013, extending the power to inspectors who are appointed. That is important so that inspectors can issue improvement notices for non-compliance in relation to nuclear safeguards. Therefore, I would argue that the Bill already achieves the purpose of the amendment.
Paragraph 4 of the schedule amends section 82 of the 2013 Act such that relevant statutory provisions will include nuclear safeguards. That is the key to switching on the ONR power. I hope that that reassures the hon. Gentleman, and colleagues on both sides of the Committee, that the Bill achieves the purpose of the amendment.
I shall leave at that, Mr Gray, in keeping with the advice you gave. I would like to discuss this matter in greater detail, but that was the sentiment of your instructions to us.

Alan Whitehead: This proposal is serious and requires substantial discussion in Committee. Amendments 5 and 6 address a particularly egregious part of the Bill: clause 2, which provides the power to amend legislation relating to nuclear safeguards.
As I am sure hon. Members are aware, the clause suggests that we amend not only secondary legislation relating to nuclear safeguards but a series of other pieces of legislation: the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004. Two of those are pieces of primary legislation that have gone through the whole parliamentary procedure on the Floor of the House, received Royal Assent and become legislation. The clause suggests that those pieces of legislation should not only be amended by regulation but be amended on the basis of discussions about an agreement with the IAEA that we know nothing about at the moment and have not agreed.
One might think that these are not Henry VIII clauses but Henry IX clauses. I think there was a Henry IX in France, so it is possible to make that point without too much interruption in history. These powers are very substantial and exceptional and, to my mind, run wholly counter to what we should be doing in the House as far as legislation is concerned.
I will come to what the Government have to say about the particular circumstances in a moment. Henry VIII powers were obviously used substantially during the reign of Henry VIII, but subsequently have not been used quite so frequently. Although they have been used a little more frequently in recent years, the idea that the Executive—by Executive action, effectively—can overturn, amend or take in a different direction what Parliament has decided through legislation is something the House has fought against for many years. When such powers have been sought in the past, they have been in some instances successfully challenged, and on many occasions strongly challenged on both sides of the House.
We want to make an initial statement of principle that the Opposition do not like Henry VIII clauses. We think they are an overturning of the sovereignty of Parliament in dealing with these issues and that they give powers to the Executive that are unwarranted on virtually all occasions. A piece of legislation should be written in this form only in a dire emergency, where a calamity will befall the nation if that action is not taken. In all other circumstances, the idea is that legislation should properly appear before Parliament to be debated. If it is legislation replacing or substantially amending primary legislation, that process should be one of primary legislation as well.
In this instance, what might be envisaged as far as primary legislation is concerned would not detain the House forever or be particularly complex or difficult to achieve. Yesterday in the Chamber, we saw how it is possible to take a Bill through in an afternoon. Where changes are made with a consensus in the House, the procedure is pretty rapid, straightforward and achievable. Why can that procedure not be adopted for these pieces of legislation? Is it because there is a national emergency or the sky will fall in if we do not make the amendments? Is it because it has not been possible to find parliamentary time to undertake what would be neat and precise Bills to make the amendments? Indeed, on the basis of what has previously been achieved, would not a brief piece of  primary legislation on the Floor of the House have agreement from all parts of the House?
I am not persuaded, nor do I think I will be persuaded easily, that that is not possible in these circumstances. The clause as drafted is therefore not something that has to be done, but something the Government have chosen to do in support of their legislation. It may well be that the Minister will say, “Yes, we have chosen to do this because, as far as we are concerned, these things have to be done.” As far as previous legislation is concerned—let me find a copy of the document that I just gave to the Clerks.
The Department’s delegated powers document on legislation, to which I have referred, states at paragraph 78:
“It is essential that the specified safeguards legislation is amended to make correct reference to the new agreements that the UK envisages concluding with the IAEA”.
Furthermore, paragraph 79 states:
“Without amendment, the existing provisions will become ineffective”.
The Henry VIII clause emergency is simply that any legislation that has not been amended after an IAEA agreement has been decided—we would enter a different arrangement from the one we had with Euratom—would render the new procedure ineffective. The relevant Acts therefore need to be changed. However, that is not the case with secondary legislation; it is only the case with those Acts, which I think we can all agree need to be amended. Of course, when all those proceedings have concluded, legislation will need to be in line with new procedures elsewhere on the statute book. That is not an issue at all. The issue is whether, in order to bring those bits of legislation in line with whatever we have agreed, we effectively declare a national emergency and say that we have to adopt Henry VIII clauses to do it. That is quite wrong, both for this piece of legislation and indeed most other pieces of legislation that try to include those Henry VIII clauses.
It is the case not only that those amendments need to be made in order to make the new regime effective, as the Government set out in that document, but, as the document says, the amendments are necessary for the whole thing to become operational. We would like to simply strike it out and to say, “You should not do it in this way at all,” but that might be seen as wrecking the Bill, because a lot of other material would have to be written in in order to fully strike it out. For the moment—although it may not be the case as the Bill progresses—in the absence of what we think should be the proper procedure with this piece of legislation, we will content ourselves with doing two things to the clause that do not strike it out but amend it very substantially, so that it comes back at least to some extent for Parliamentary consideration.
We are suggesting those two things in the amendments. First, the Minister is empowered by the clause to change those Acts by regulations. It states that he
“may by regulations amend any of the following”.
As we have previously alluded to, the emphasis is on the fact that the Secretary of State “may” amend by regulations. For the transposition of agreements to ONR and the   signing of the new agreement with IAEA, it is clear from the Government’s own documentation that it is not the case that the Secretary of State may amend, but that he must do so. If he does not amend by regulation, the whole thing does not work. Although I accept the parliamentary convention that a power given to a Secretary of State saying that they “may” do things by regulation means, under most circumstances, that they should do something, that is not what the Bill says.
I suggest that we are in new times. The convention that the Secretary of State may do something by regulation is normally related to something that they may do to change something, and they would have power in a piece of legislation to make those changes by regulation. If the Secretary of State did not make those changes, the previous regulations would apply and the status quo ante would continue. As I have previously mentioned, under no circumstances does the sky fall down; the world carries on and previous regulations continue to exist, although perhaps they are not as great as they might be. Regulations may have not been introduced to change things, but there are lots of instances in Acts where regulations that could be introduced have not been, but business proceeds. In this instance, business would not proceed. The departmental memorandum makes it clear not only that business would not proceed but that it could not proceed unless the Secretary of State did something to change those pieces of legislation under the terms of this Bill, to make them compatible with the new set of circumstances.
The amendment changes the word “may” to “must”, and it makes clear that the Secretary of State must make those changes. That seems to be entirely logical and consistent with what the Department has said about the necessity of making those changes and it submitted that necessity to the regulations committee.
Changing the word “may” to “must” does not automatically bring something fully into the purview of Parliament, so we have tabled amendment 6, which requires the Secretary of State, when he has done his duty when amending regulations, to place a report before Parliament that will be debatable under a motion. Parliament can see what the Secretary of State has done when amending those pieces of legislation, and can give its opinion on whether they are good enough to do the job that they are supposed to do. Parliament would then have oversight, to see whether the changes work once the Secretary of State has done what he should with those regulations.
My view is that that is probably not good enough. There are still Henry VIII clauses in the first instance, but at least the amendment goes some way towards ameliorating the unacceptable way in which those clauses work at present. To my mind, that is the very minimum that the Minister ought to accept as a change in the arrangements. If he cannot accept those changes, we will want to pursue the matter quite a long way further.

Alan Whitehead: Indeed, the Minister is right, in principle. That may be something we might address with one of the amendments we may discuss this afternoon.
The fact of the matter is that putting something in this legislation simply because it might be a little inconvenient to have it any other way, given time constraints, is not a justification for using Henry VIII clauses. As I have mentioned, it is not beyond the wit of Government under those circumstances to introduce primary legislation that can be carried through this House very quickly indeed. If the Minister is so concerned about time constraints, he should also understand that other people will be concerned about time constraints as well and would be willing to make sure that that kind of legislation went through in a speedily.
This morning, he is giving assurances that this will all be done in the proper way and that it will be okay. We can give assurances on the other side that yes, if he did it in a proper way, we would make sure that this was done properly. Those assurances are of about equal weight. He simply has not made the case that the arrangements are necessary for the purpose of translating all the stuff in question into UK law. I remind the Committee that the Department, setting out the context and purpose of the clauses, has emphasised that it is necessary to take the action in question, but there is no mention in the document of the necessity to do it in time that is not otherwise available to Parliament. The document does not make that argument.
Because we have tried to be so reasonable and careful in our approach, but have not received anything coming the other way—